This article is for employers and employees alike. And perhaps more importantly for lawyers too. For employees, the premise of this piece is simple: if your employer and their lawyer are willing to lie for you, don't do it. The premise for employers is the same. Don't lie for your employees when filing immigration documents on their behalf. As detailed below, the erroneously perceived victimless "crime" of lying to obtain immigration benefits is not only illegal, but might, and from our perspective should, have negative effects on an employers and employees ability to obtain future benefits. This article is not meant to scare. Instead, it is an informative piece, which details among other things, what is required of both employers and employees in proving up an H1-B petition. While neither the statute nor the regulations cite it, honesty and common sense are two of the most important principles in this, and any other immigration application.
We do not mean to sound unsympathetic to the difficulties that new immigrants face when coming to the United States nor do we intend to sound self-righteous in the information we present. We recognize that it is much easier to give advice from the side of the desk that we sit on, than it is to follow it from the other. It cannot be stated enough, that we understand, respect and appreciate the decisions that persons make in traveling to the United States; a decision that can and often does result in one being separated from one's family for prolonged periods of time. While there are a number of reasons that might result in one's decision to remain in the United States, economic reasons-the desire for greater financial stability and education for one's children- are commonplace. For example, a well-qualified and trained dentist from the Philippines can make more money here as a dental hygienist or office worker, than as a dentist in Manila. That said, however, the dental office here cannot petition this worker as a dental research specialist, unless, of course, dental research is what the employee is doing. The foregoing notwithstanding, many lawyers will (erroneously) advise employers and employees alike to submit such petitions, knowing that in most cases, it will be denied. A lawyer's purported empathy with an immigrant's plight and or her own attitudes towards immigration reform should not result in the filing of a fraudulent application.
Many lawyers refuse to ask important questions in the initial intake interview, the preparation stages of the petition, and when you hire them to do the appeal of a petition that was denied. See, while the practice of law is an art it is a business as well. And, many (unethical) lawyers are more concerned with your hiring their firm to earn so they may earn a fee, then they are with providing quality, honest, legal advice to their would be clients. It is these same lawyers that refuse to sign the documents that they prepare for you, instead choosing to leave a portion of the form blank. Why? Because they don't believe what you tell them. Ask yourself this: if your lawyer doesn't believe in your case enough to sign the forms that they prepare, is the government officer reviewing your case going to believe in you and the lawyer that represents you.
H1-B applications are not for everyone. Instead, the H1-B category is reserved for members of professions and/or specialty occupations. While the most persons will tell you that in order to qualify for an H-1B you need a Bachelor's Degree or its equivalent, there is much more to it than that. According to §214(h)(i) of the Immigration and Nationality Act, "specialty occupation" means an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. And, if the nature of the position requires a license to practice in the field (e.g. certain engineers), one must be possessed of the appropriate state license.
According to Title 8 of the Code of Federal Regulations § 214.2(h)(4)(iii)(A), in order to qualify as a specialty occupation, the employer (petitioner) must demonstrate at least one of the following: (1) a bachelor's degree or higher (or its equivalent) is normally the minimum requirement for entry into the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Why is this law and regulation important? Law and regulation is important because you must know, or at least have a feeling, at the outset of the process, whether or not you are qualified for an H1-B. As stated above, there is much more to it than having a college degree. On the one hand, you must be informed so that when you speak with a lawyer, you will know if the lawyer if capable of representing you or is simply capable of taking your money. You must know the requirements because if your case is denied, and you elect to pursue an appeal, you are cognizant of the changes of success (on motion to reconsider/appeal) and the potential consequences that might befall you, i.e. unlawful presence in the United States. On the other hand, you are confronted with the decision that if you don't try, than you have absolutely no change of success.
In modern H1-B practice, almost every case, premium processing or otherwise, is met with a Request for Evidence from the USCIS. You should know this going into the process since both employers and employees alike may be asked to provide further evidence of eligibility; evidence that they cannot provide. And, the failure to provide certain forms of evidence may result in the automatic denial of the petition. Given the almost automatic RFE, a response thereto should be incorporated into the initial H1-B strategy. If the position is a fake one, it should come as no surprise that the proposed response would not only be difficult if not impossible, but would more importantly, be ill advised since it is in furtherance of the initial fraud.
It is important to know these things at the outset since the money that you spend on attorney and filing fees, not to mention the time and energy spent in seeking out employment opportunities, etc., might be better used in exploring other immigration opportunities, such as the E-1 or E-2 classification or other.
Both employers and employees alike should also be concerned with long-term negative immigration consequences that can befall both a petitioner and beneficiary alike if a fake H1-B is discovered by the government. Fraud at one level, if detected, can and certainly would be used against you at another.
For employees, engaging in unauthorized employment activities is a bar to the portability provisions of AC21. Further, fraud and misrepresentation can serve as a bar to adjustment of status at a later stage. Employers can be subject to civil and criminal penalties depending on the knowledge of the immigration violations. Chances of criminal penalties are not great, however, given the present immigration climate, this may change. Employers may also find themselves in the unpleasant position of defending a lawsuit filed by one of the employees that you sponsored since you failed to pay the prevailing wage that you certified to the Department of Labor that you would. The lawsuit would likely include causes of action styled unfair business practices, and wage and hour violations pursuant to the California Labor Code. And, the money that you spend in defending/settling this lawsuit, will exponentially exceed the monies that you would have spent in hiring a qualified person entitled to work in the United States.
As stated above, the foregoing piece is not meant to scare you but to inform and warn. You have made what appears to be an ultimate sacrifice: choosing to leave your family back home in order to come to a place where you will make what you consider to be a better life for you and them. It would be horrible and unthinkable situation for you to have to return home (without your visa) to be reunited with your family and explain to them that not only are you prevented from returning to the United States, but that the chances of your family ever coming here would be slim to none.
You can avoid this. Be honest and candid with yourself, your employers and your potential lawyers. Do not become a victim of those who are willing to lie for you. Employers that will lie to the government for you are not interested in helping you. They are interested in helping themselves and will certainly take advantage of you. The lawyers who engage in this conduct are likewise without concern for the well being of you or your employer. Whether you are an employer or an employee, be truthful in the applications that you file with the government. While the benefits you seek might be harder to come by, they will be more worth it in the end. And, once obtained, they can't be taken away from you.